Smith v. McPherson

78 Ga. 84

• Court: Supreme Court of Georgia
• Decided: December 21, 1886
• Status: Published

Opinion

Blandford, Justice.

E. H. McPherson foreclosed a' landlord’s lien ag st Robert Gresham, and execution issued thereon and was levied on tenant’s property, which was sold, and the money was in the hands of the constable. E. W. Smith placed an execution in his favor against Gresham in the constable’s hands, and claimed the money. Smith then, as creditor, filed a counter-affidavit, contesting the claim of the landlord, McPherson. The court dismissed the counter-affidavit as coming too late, and this is the error assigned in this court.

If the counter-affidavit had been filed before levy of the execution issued upon the landlord’s foreclosure of his lien for advances and supplies, and before the sale of the tenant’s property, this execution would then be mesnc process, under the decision of this court in 65 Ga. 444, and Cosgrave vs. Mitchell, decided at February term, 1885 (74 Ga. 824). If the property be sold before the interposition of the counter-affidavit, then the process is final. 69 Ga. 736 ; 34 Ga. 180. The creditor, under section 1991 of the code, could hot interpose a counter-affidavit if the debtor could not, and the debtor could not after sale of his property after foreclosure and under exeecution issued thereon, but the creditor must look to the money. 47 Ga. 643; 73 Ga. 238. The plaintiff in error should have contested with the landlord as to the money upon rule against the officer who held it, and he could, in that proceeding, have shown anything that entitled him to the money as fully as he could in any issue raised on his counter-affidavit.

Judgment affirmed.